SZIEN v Minister for Immigration and Multicultural Affairs

[2006] FCA 1422

FEDERAL COURT OF AUSTRALIA

SZIEN v Minister for Immigration & Multicultural Affairs
[2006] FCA 1422

MIGRATION – application for protection visa – refused – application for review by Refugee Review Tribunal – refused – appeal to Federal Magistrate’s Court – dismissed – leave to appeal required – judgment below not attended with sufficient doubt – no substantial injustice – leave refused

Migration Act 1958 (Cth), s 424A(1), s 424A(3)(a).

SZIEN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD 1323 OF 2006

MARSHALL J
1 NOVEMBER 2006
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1323 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIEN
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE OF ORDER:	1 NOVEMBER 2006
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal is refused.

2.The applicant pay the first respondent’s costs of the appeal.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1323 OF 2006

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:

SZIEN
Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	MARSHALL J
DATE:	1 NOVEMBER 2006
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of the People’s Republic of China. He applies for leave to appeal from an interlocutory judgment of Federal Magistrate Driver published on 22 June 2006 in which his Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal.  The Tribunal had affirmed a decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse the applicant a protection visa.

2. On 2 June 2006 Federal Magistrate Driver dismissed the applicant’s application on account of his non-attendance.  At a further hearing on 22 June 2006, the learned Federal Magistrate refused to reinstate the application.  His Honour found the applicant was not a witness of truth, as the explanation the applicant provided for his non-attendance was implausible.  His Honour found the applicant did not attend court for the previous hearing and even if he had, he took a conscious decision not to enter the courtroom when his name was called.  The Federal Magistrate said that if the applicant had advanced a sufficient explanation for his non-attendance a serious question to be tried would have been demonstrated.

3. The applicant, who is self-represented, submitted that the Federal Magistrate erred in not accepting that he did not attend court on 22 June 2006. By the draft notice of appeal annexed to his application for leave to appeal, the applicant raised a number of grounds. The applicant asserted that the Federal Magistrate failed to consider the fact the applicant did appear at court but did not realise he was being addressed as SZIEN. The applicant contended that the Federal Magistrate failed to find the Tribunal misunderstood his claims and that the Tribunal made erroneous findings. The applicant also indicated that an issue arising under s 424A(1) of the Migration Act 1958 (Cth) was raised and that the Tribunal applied the wrong test for credibility and denied him procedural fairness.

4. The Tribunal’s decision was based on its finding that the applicant had fabricated his claims.  It did not accept he was involved in a certain anti-government organisation.  It made this finding, in part, on the applicant’s inability to describe, in any cogent way, how that body was organised.  The Tribunal found that the evidence the applicant gave regarding his participation in demonstrations lacked credibility. It also found it implausible that the authorities would have permitted seven to eight demonstrations to take place before taking action to arrest the demonstrators, as independent evidence suggested the authorities moved quickly to suppress demonstrations.  The Tribunal also considered it relevant that the applicant, although claiming to be a political dissident whose colleagues were sentenced to prison terms, did not “bring the plight of these colleagues to the attention of human rights organisations”.  The Tribunal was not satisfied that the applicant had a well-founded fear of persecution arising from his claim of being involved in an anti-government organisation. 

5. The Tribunal did accept that the appellant left China using a passport which was not his own, and although it was satisfied, on country information, that a penalty may be imposed on the applicant for his illegal departure, it was not satisfied that this constituted persecution for a Convention reason.

6. As the judgment below is interlocutory, leave to appeal is required. Leave will not be granted unless the judgment below is attended with sufficient doubt to warrant its reconsideration on appeal and unless substantial injustice would result if leave were refused, supposing the judgment to be wrong.

7. I do not consider that the judgment of Driver FM is attended with sufficient doubt to warrant its reconsideration on appeal. The judgment below was based on his Honour’s view of the applicant’s credibility. The applicant has not demonstrated why this Court should take a different view of his credibility than that taken by his Honour, especially where the transcript of the proceeding on 2 June 2006 supports his Honour’s finding that the applicant was called outside the Court both by his actual name and his designated name for the purposes of the proceeding before the Court below.

8. Additionally, no substantial injustice arises from the refusal of leave to appeal because the applicant’s proposed grounds of appeal cavil with factual findings made by the Tribunal. The only issue of substance raised in those proposed grounds, which does not seek to dispute the Tribunal’s findings of fact, is a ground based on s 424A of the Act. That ground alleges that the Tribunal relied on country information without inviting the applicant to comment on it. Section 424A does not apply to country information that is not specifically about the applicant and which is just about a class of persons of which the applicant is a member; see s 424A(3)(a).

9. The application for leave to appeal is refused with costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.

Associate:

Dated:        1 November 2006

The applicant represented himself.
Counsel for the first respondent:	Ms G. Broderick
Solicitor for the first respondent:	Blake Dawson Waldron
Date of Hearing:	1 November 2006
Date of Judgment:	1 November 2006